Ex-BART cop said he was ‘fighting for my life’ with Oscar Grant before shooting; report says that was a lie

An image from a video of the 2009 BART police shooting of Oscar Grant at Fruitvale Station in Oakland shows the scene just moments before former Officer Johannes Mehserle shot Grant. Former Officer Anthony Pirone can be seen holding Grant's head down with his left hand, with his left knee on Grant's neck. Mehserle is bent over, about to fire his pistol. Two of Grant's friends look on.

Photo: Courtesy John Burris

A former BART police officer who pulled Oscar Grant from a train 10 years ago and ordered his arrest before a second officer fatally shot Grant in the back lied repeatedly to investigators, telling them he felt he was “fighting for my life” when in fact he was the aggressor in the notorious incident, according to a newly released report.

The report by the Meyers Nave law firm — which BART hired to run its internal investigation due to a loss of public faith in the agency — long ago prompted the firing of the officer, Anthony Pirone. But the report was released only this week under California’s new police transparency law, Senate Bill 1421.

It details how investigators concluded that Pirone played a role in Grant’s death at Fruitvale Station in Oakland on Jan. 1, 2009, then sought to cover it up. Pirone was not criminally charged. But former BART Officer Johannes Mehserle was — and he was convicted of involuntary manslaughter after a jury accepted his explanation that he accidentally shot Grant while believing he was squeezing the trigger of his Taser.

“Pirone was, in large part, responsible for setting the events in motion that created a chaotic and tense situation on the platform, setting the stage, even if inadvertent, for the shooting of Oscar Grant,” concluded Kimberly Colwell and Jayne Williams, the two attorneys who authored the report dated July 31, 2009.

They cited Pirone’s “repeated, unreasonable and unnecessary use of force,” his “manifest lack of veracity” and his use of the word “n—” while arguing with Grant in recommending the officer’s firing.

Efforts to reach Pirone on Wednesday were unsuccessful; and his attorney in the Grant case has since passed way.

Videos captured by bystanders contradicted Pirone’s claims to investigators, showing Grant, a 22-year-old Hayward resident, never tried to punch or kick Pirone. On the contrary, the Meyers Nave report said, Pirone struck Grant in the head and kneed him, likely causing injuries documented in his autopsy.

Mehserle ultimately shot Grant while trying to obey Pirone’s commands to handcuff him. The events of that night sparked protests, inspired the movie “Fruitvale Station” and helped usher in a new era of police accountability dependent on cell phone videos and footage from body-worn cameras. Mehserle served a year in jail, and BART launched a series of reforms designed to professionalize the agency’s police force.

Without the videos that guided the internal investigation, prosecutors might have filed charges against four friends of Grant who were with him on the platform — and they might not have filed charges against Mehserle, Grant’s family attorney John Burris said Wednesday.

What happened at Fruitvale Station?

For a full account of the shooting of Oscar Grant, along with videos of the incident, go to bit.ly/oscargrantcase.

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“If there had been no video, it would have been only the words of the police officers,” Burris said. He said Grant would likely be alive if not for Pirone’s escalation: “It was all Pirone. He generated this whole thing like a person on steroids. He was overly aggressive.”

The internal investigation said Pirone’s lies began with his description of an exchange he said he had with the train operator after he pulled Grant and his friends from the train, allegedly because Grant had been fighting with another man. Pirone told investigators that the operator said, “Those five you’ve got over there were the five causing the problem on my train.” But the operator insisted she never said that — and did not see who was fighting on her train.

“Pirone appears to be changing, shifting and shading the facts to put his actions and conduct in a more favorable light,” the report found.

As he began detaining Grant and his friends, Pirone told investigators, he saw Grant attack his partner, Marysol Domenici. However, the report’s authors said the video shows Grant did not touch Domenici, and in fact is seen on video pushing his friends away from her.

When Pirone confronted Grant, he told investigators the young man tried to punch him and succeeded in kicking him in the groin, causing him to think, “I’ve got a fight now.” Pirone told investigators he felt “like I’m fighting for my life at this point.”

But the investigators noted in their report: “None of this appears to have happened during the video sequence of this event.”

Meyers Nave said it was unsuccessful in trying to set up an interview with Mehserle. But the newly released report shows that the law firm agreed with the Alameda County district attorney’s office, and Grant’s family, in concluding the shooting was not an accident. That finding conflicts with Mehserle’s testimony at trial, which a judge and jury found to be persuasive.

Mehserle “was intending to pull his firearm and not his Taser, as he can be seen trying to draw it at least two times and on the final occasion can be seen looking back at his hand on the gun/holster to watch the gun come out,” Colwell and Williams wrote. “Deadly force was not justified under the circumstances.”

Matthias Gafni joined The San Francisco Chronicle as an enterprise reporter in February 2019. He investigates stories in the East Bay and beyond. For almost two decades, Gafni worked for the Bay Area News Group – San Jose Mercury News, East Bay Times and Vallejo Times-Herald -- covering corruption, child sexual abuse, criminal justice, aviation and more. He was born and raised in the Bay Area and graduated from UC Davis. He lives with his wife and three kids in the East Bay.